New bill would punish colleges, students who don’t become copyright cops

Schools would be forced to police file-sharing activity on their networks and …

A massive education bill (747-page PDF) introduced into Congress contains a provision that would force colleges and universities to offer "technology-based deterrents" to file-sharing under the pain of losing all federal financial aid. Section 494 of the College Opportunity and Affordability Act of 2007 is entitled "Campus-Based Digital Theft Prevention" that could have just as easily been called "Motion Picture and Recording Industry Subsidies," as it could force schools into signing up for subscription-based services like Napster and Rhapsody.

Under the terms of the act, which is cosponsored by Rep. George Miller (D-CA) and Rep. Ruben Hinojosa (D-TX), schools will have to inform students of their official policies about copyright infringement during the financial aid application and disbursement process. In addition, students will be warned about the possible civil and criminal penalties for file-sharing as well as the steps the schools take to prevent and detect illicit P2P traffic.

That's not all: schools would have to give students an alternative to file-sharing while evaluating technological measures (i.e., traffic shaping, deep packet inspection) that they could deploy to thwart P2P traffic on campus networks. Many—if not most—schools already closely monitor traffic on their networks, with some (e.g., Ohio University) blocking it altogether, and the bill would provide grants to colleges so they could evaluate different technological solutions.

The most objectionable part of the bill is the part that could force schools into signing up for music subscription services. In order to keep that beloved federal aid money flowing, universities would have to "develop a plan for offering alternatives to illegal downloading or peer-to-peer distribution of intellectual property."

Introduced in 2003, campus-wide subscription agreements give students access to download services like Napster or Rhapsody whether they want it—or can use it (the iPod isn't supported by any of the subscription services). The services are typically funded by activity fees; by and large, they've been met with a collective yawn from students. Lack of iPod support is a major turn-off, as is the fact that the subscriptions end when a student graduates or transfers, rendering the downloads unplayable.

The Motion Picture Association of America doesn't see it that way. Chairman and CEO Dan Glickman called it a positive step in the fight against file-sharing, throwing out some unsubstantiated figures on how file-sharing allegedly costs jobs and hurts the economy. "Intellectual property theft is a worldwide problem that hurts our economy and costs more than 140,000 American jobs every year," said Glickman in a statement. "We are pleased to see that Congress is taking this step to help keep our economy strong by protecting copyrighted material on college campuses."

The Association of American Universities doesn't like the idea at all. In a letter (PDF) sent to Rep. Miller just before the bill was introduced, the group expressed its "grave concerns" about Section 494 of the bill. "We urge the Education and Labor Committee to reject the entertainment industry's proposal as it crafts its bill to reauthorize the HEA," reads the letter. "The proposal would mandate a completely inappropriate role for the Secretary of Education to single out individual institutions based on information under the control of the entertainment industry, force institutions to seek an unachievable goal of preventing illegal P2P file sharing, and risk the loss of student aid for countless students innocent of any illegal file sharing activity."

This isn't the first time Congress has threatened colleges and universities over file-sharing. In June, the House Committee on Science and Technology held hearings on the issue, with committee members telling schools that they need to explore technological measures in the battle against illicit P2P traffic. Two months later, an amendment to the Higher Education Act was proposed by Sen. Harry Reid (R-NV) that would have forced schools to crack down on P2P traffic.

Schools have objected to attempts to force them to the front lines of the copyright wars. Technological measures can be costly and are not always effective: they may not block all illicit traffic, while preventing some legitimate BitTorrent traffic from going through. Colleges and universities don't believe they should be forced to do the RIAA and MPAA's dirty work, especially since current copyright law and the DMCA give both organizations several avenues by which they can enforce their copyrights.

File-sharing may be commonplace on many college campuses, but universities shouldn't be treated any differently than other ISPs. The DMCA shields them from liability for the kind of traffic on their network, and removing that protection via an amendment to the Higher Education Act would create a dangerous precedent. Turning universities into copyright cops and forcing them to spend millions of dollars on untested technological solutions in a time of rising tuition and shrinking budgets is a bad idea.